Logan Warren v Toll Personnel Pty Limited
[2024] FWC 2569
•20 SEPTEMBER 2024
| [2024] FWC 2569 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Logan Warren
v
Toll Personnel Pty Limited
(C2024/4801)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 SEPTEMBER 2024 |
Application to deal with a dismissal dispute under s365 of the Act – jurisdictional objection that there was no dismissal – Applicant not dismissed – jurisdictional objection upheld, and Application dismissed.
The dispute and outcome
On 12 July 2024, Mr Logan Warren (the Applicant) applied to the Fair Work Commission (the Commission) for an application to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act).
The Applicant commenced employment with Toll Personnel Pty Limited (the Respondent) on 15 April 2024, as a truck driver on the Barrow Island Project. The Applicant claims that after sustaining a foot injury from ill-fitting boots supplied by the Respondent and subsequently limping around the site, he was informed his employment was terminated on 22 June 2024.
The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act, but voluntarily resigned from his position at the Barrow Island Project.
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.
Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 13 September 2024. The Applicant clarified at hearing that he relied upon s 386(1)(a) of the Act, advancing his argument that his employment was terminated at the Respondent’s initiative. Having considered the evidence of the parties and their submissions, I have found that the Applicant was not dismissed. It follows that the application does not meet the requirements of s 365 of the Act and the Commission does not have jurisdiction to deal with it. An Order[3] to this effect will be issued with this decision.
Background
In respect of the broader context leading to the cessation of the Applicant’s employment, evidence was received from the Applicant and, on behalf of the Respondent, from Mr Joshua Allan Wells, the Respondent’s TAR Supervisor.
Whilst abridged versions of the parties’ evidence are set out below, I first note that it was uncontroversial that the Applicant was employed pursuant to an employment contract titled ‘Casual Employment Terms and Conditions’. That employment contract set out, amongst other things:
My Casual Employment with Toll People
1I agree that my employment with Toll Personnel Pty Ltd (Toll People) is on a casual basis.
2I understand that I may accept or reject any assignment offered to me by Toll People at any time.
3I understand that on completion of an assignment, Toll People is under no obligation to offer further assignments to me.
4I understand that Toll People is under no obligation to provide me with any regular or systematic work and makes no firm advance commitment regarding the ongoing nature or duration of any work.
5I accept that my casual engagement is conditional on…
Casual Hours of Work and Reporting for Duty
10As each assignment is a separate and distinct hiring, my hours of work as a casual employee will vary according to the demands of Toll People and its clients without any commitment being given with regard to the duration or ongoing nature of any work.
11I acknowledge that Toll People does not control the length of an assignment and provides no undertaking with regard to the duration of any work. I accept that Toll People or its clients may vary the duration of any assignment at any time.
12I any commitment is given for an assignment for a specific fixed / maximum period of time, I agree to complete that assignment…
The Respondent’s account
Mr Wells explained that the Respondent had deployed the Applicant to Chevron’s oil and gas project on Barrow Island. Whilst Mr Wells is employed by the Respondent, he notes he reports directly to Chevron management.
Mr Wells said that in his role he is ‘logistically responsible for supplying and managing trades employees, and goods and materials for the shut down’.[4] The shutdown to which Mr Wells refers is the shutdown on Train 2 for remediation and maintenance works.
In respect of the Applicant’s position, Mr Wells explained that the Applicant worked as a GSO7, his main skill set being truck driving. As a GSO7, the Applicant was usually allocated to drive prime movers with all sorts of trailers. Other GSO7s were also allocated to be passed out on different float movements, but with the Applicant that was said to be less common.[5]
Mr Wells said that he met the Applicant on his first swing on Barrow Island in May 2024. However, he understood that the Applicant had previously worked a swing on the Island in April 2024.
According to Mr Wells on 22 May 2024, he had a conversation with the Applicant where the Applicant said words to the effect that he had another role lined up that would suit him and his partner better, so that would be his last swing.[6] Mr Wells said that he informed the Applicant to the effect of ‘[N]o worries. I’ll pass it onto the team’.[7]
Later in the day on 22 May 2024, Mr Wells emailed Nicole Down, a Toll People Recruitment Administrator, advising her of the discussion with the Applicant:
Morning Nicole and Lynne
I have been informed this morning by Logan that he will not be returning, and this is his last swing.
So, can we please make the adjustments to the roster and work on finding a possible replacement to fill his role?
….[8]
Mr Wells said that on 25 May 2024 he had another conversation with the Applicant to the following effect:
Applicant: Is it possible for me to get one more swing? The role I have lined up isn’t quite ready for me yet. If I can get one more swing, that will really help me out.’
Mr Wells: No worries. I’ll do my best, but it might be hard.[9]
Mr Wells sent an email to Ms Down on 26 May 2024 regarding his conversation with the Applicant on 25 May 2024. The email stated:
Hi Nicole
Can you please arrange Logan for another swing? If that is still possible.
He came to me yesterday and had a chat about his position. He fly’s [sic] out tomorrow as you know so if its [sic] possible could you please confirm with him.
If it’s too late, then that’s ok I warned him it could be…[10]
Mr Wells ended his swing on 27 May 2024 and flew off Barrow Island, returning on 10 June 2024.
Mr Wells stated that on 22 June 2024 he had a conversation with the Applicant, who was on site, and during that conversation he said words to the Applicant to the effect that:
We are wrapping up your position as the swing is coming to an end. There have been some performance issues noticed. We’ve had multiple discussions about your foot, and it’s [sic] been noticed by Chevron. I’ve defended you on that, but it’s impacting the team.[11]
Mr Wells said that on 23 June 2024, the Applicant attended work as normal, and on 24 June 2024, the Applicant’s swing ended, and he flew off site with the rest of the crew.[12]
The Applicant’s account
Having commenced in his position on 15 April 2024, the very next day the Applicant developed a sore foot due to what he says was the incorrect boot size. In his application, the Applicant explained that he had sustained a foot injury due to the inadequate footwear provided and the requirement to walk approximately 10km per day, which had led to the development of a corn. On 16 June 2024, the Applicant requested a new pair of boots. However, the Applicant did not receive the new boots until 27 April 2024, at which time his limp had progressively worsened.
The Applicant notes there was no improvement in his foot, and he contemplated leaving the job because of this. He further notes that he was told if he saw an onsite doctor he would be sent home without pay and his job would be finished, which would impact him receiving further employment due to having a recorded injury.
The Applicant said he informed Mr Wells he would not be returning and tried to secure a different job. However, his prospective employer informed him that he would have to undertake a pre-employment medical, which the Applicant knew he would fail due to his inability to walk properly. The Applicant stated that he requested more work (presumedly from the Respondent) and was given more work.[13]
According to the Applicant, he was told about a job in another crew at Barrow Island, which involved considerably less walking than the position he had held. The Applicant said he approached Mr Wells to put his name forward for the position but was told the position was not being filled.[14] The Applicant said that thereafter, on 20 June 2024, he asked Mr Wells to stay on (presumedly the Barrow Island Project), to which Mr Wells purportedly replied that it would not be a problem as the Respondent was unable to attract sufficient workers. However, the Applicant noted that Mr Wells said that if the Applicant’s post had been filled, the Applicant might have to drop a level and have a lower pay rate, which the Applicant said he agreed to.[15]
The Applicant said that on 22 June 2024, at the end of the working day, he was approached by Mr Wells as he returned to the lunchroom to clock out. The Applicant said Mr Wells advised that ‘Simon’ (presumedly Mr Wells’ onsite manager) had informed him that the client and other senior staff had noticed his foot had slowed him down a lot more and seemed to be affecting the job. The Applicant states he was told to pack all his belongings as he would no longer be returning to site and his employment was being terminated, which the Applicant said he accepted.[16]
On 24 June 2024, the Applicant returned to Perth with his belongings, [17] and on 1 July 2024 he attended his general practitioner to have his foot assessed.[18] Having had his foot assessed, the Applicant said he was advised he would require surgery and to make a workers’ compensation claim.[19]
The Applicant contacted the Respondent on 1 July 2024 and the following day met with the Respondent, at which time his workers’ compensation application was followed up.[20]
The Applicant advised the Respondent at the meeting on 2 July 2024 that he did not wish to return to Barrow Island after the failings in the care provided to him and after having had his employment terminated but would be happy to work back at ‘Toll’ in Forrestfield once cleared to work.[21]
The Applicant concedes that since then, he has suffered a non-work-related injury that has impeded him working.[22]
Consideration
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the acceptance by the Federal Circuit Court[23] and Federal Court[24] that the definition of the word ‘dismissed’ in s 386(1) of the Act, is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions do not appear relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[25] and in Lipa Pharmaceuticals Ltd v Jarouche[26] where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[27]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) considered the operation of s 386(1)(a):
“[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[28]
Whether the Applicant was dismissed requires an objective finding of fact.
At hearing, the Applicant’s evidence aligned for the most part with that of Mr Wells.
The Applicant agreed that between 13 May 2024 and 27 May 2024, he indicated to Mr Wells that he did not wish to return and that in the latter part of the swing, he advised Mr Wells that his circumstances had changed and asked for another swing. Further, the Applicant states that he informed Mr Wells that his role (a new job) had not lined up and that Mr Wells had informed him that he would do his best, but it might be hard (presumedly to secure him another swing).
I am of the view that the contemporaneous emails relied upon by the Respondent reflect an extemporaneous and unvarnished product of Mr Wells recounting his discussions with the Applicant to Ms Down. It strikes me that confidence can be placed on those contemporaneous records, particularly where, as is the case here, that record is unfiltered and sufficiently complete.
The email dated 22 May 2024 from Mr Wells to Ms Down evinces that the Applicant had informed Mr Wells that he would not be returning to the Project.[29] Further, the email dated 26 May 2024 from Mr Wells to Ms Down shows that Mr Wells made a request that the Applicant be provided with an additional swing and that Mr Wells had forewarned that it might be too late to secure a further swing.[30]
It is evident from these emails and from the evidence of the Applicant and Mr Wells that what the Applicant had sought, and what Mr Wells had subsequently requested from Ms Down and was able to secure for the Applicant, was an additional swing. In giving his evidence, the Applicant said he understood he was employed on a swing-by-swing basis, albeit he had the understanding that the casual position would lead to a full-time position.
The Applicant started that third swing (the additional swing) on or around 10 June 2024, taking time off the 17 June 2024 due to his sore foot. On 22 June 2024, a conversation took place between the Applicant and Mr Wells. According to the Applicant, he was informed by Mr Wells that they were letting him go and members of Chevron (the client) had observed he had been slowed down and he would not be getting any more work.
While there is some discord between the evidence of Mr Wells and that of the Applicant as to the words that were precisely used in the conversation on 22 June 2024, I find the following:
a) on 22 May 2024, the Applicant informed the Respondent that he would not be returning to the Project as his circumstances had changed (the Applicant having lined up another job);
b) on 25 May 2024, the Applicant asked the Respondent for another swing and whilst the Applicant was informed by Mr Wells that it might be hard to secure another swing, another swing was provided (the third swing);
c) on 10 June 2024, the Applicant commenced the third swing and on 22 June 2024, the Applicant was informed that his position was being wrapped up at the end of the swing; and
d) the Applicant had only asked for and had only secured a third swing, and in accordance with the Applicant’s employment contract and the provision of work as described by Mr Wells in his witness statement,[31] the Applicant’s employment came to an end on 24 June 2024 at the conclusion of the third swing, which was the end of his assignment.
It is not the case that the action of the Respondent was the principal contributing factor which led to the termination of the Applicant’s employment. The Applicant had unequivocally informed the Respondent on 22 May 2024 that he was not returning to the Project and as such had resigned. Whilst the Applicant secured another swing, namely the third swing, the evidence does not lead to a finding that past that third swing there was a commitment from the Respondent for a further assignment. Hence, when the assignment came to an end on 24 June 2024, it did so in accordance with the Applicant’s employment contract.
Whilst the Applicant spoke at hearing of a desire to secure permanent employment and whilst Mr Wells gave evidence of having advised the Applicant that the Applicant’s position was being wrapped up, and there had been discussions about the Applicant’s foot and some performance issues had been noticed, it still remains that the commitment between the parties was only for a third swing after the Applicant had unequivocally communicated his resignation to the Respondent. Each assignment was a separate and distinct hiring, with no commitment provided for the duration of work or that the Applicant’s work would be ongoing.
It therefore follows that the Applicant was not dismissed.
DEPUTY PRESIDENT
Appearances:
L Warren, Applicant
L Maroney of counsel for the Respondent
D Russell of the Respondent
Hearing details:
2024
Perth (by video):
September 13
Final written submissions:
20 August 2024
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37 (Milford).
[2] Ibid 602 [51].
[3] PR779400.
[4] Witness Statement of Joshua Alan Wells (Wells Statement) [1.4].
[5] Ibid [3.2].
[6] Ibid [3.4].
[7] Ibid.
[8] Ibid [3.5]; Annexure JAW-1.
[9] Ibid [3.6].
[10] Ibid [3.7]; Annexure JAW-2.
[11] Ibid [3.11].
[12] Ibid [3.13]– [3.14].
[13] Applicant’s Submissions dated 14 August 2024 [5] (Applicant’s Submissions); Witness Statement of Logan Warren dated 14 August 2024 [6] (Applicant’s Witness Statement).
[14] Applicant’s Submissions [6].
[15] Ibid [7].
[16] Ibid [8]– [9].
[17] Ibid [11].
[18] Applicant’s Witness Statement [13].
[19] Ibid.
[20] Ibid [14]– [15].
[21] Ibid [16].
[22] Ibid [17].
[23] Morris v Allied Express Transport [2016] FCCA 1589, [117].
[24] Milford (n 1), 603 [54].
[25] (2017) 271 IR 245 (Bupa).
[26] (2023) 324 IR 375.
[27] Bupa (n 12) 268–9 [47].
[28] (2018) 273 IR 126, 129–30 [10]– [11].
[29] Wells Statement; Annexure JAW-1.
[30] Wells Statement; Annexure JAW-2.
[31] Wells Statement [2.1].
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